MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            16 February 2000  
	DOCKET NUMBER:   AR1999023660

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Arthur a. Omartian		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Meta Waller		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his undesirable discharge be upgraded. He states that he went into the service in 1951 at a time when the military was just starting to integrate.  He indicates that he had never experienced prejudice until he entered the service and that he could not deal with it.  He states that there has been “a great change in the United States through the years” and in the name of justice, his records should be corrected.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted and entered active duty on 30 March 1951 at the age of 17 with 8 years of formal education.  In March 1952, while assigned to Fort Belvoir, the applicant was convicted by a summary court-martial for 7 days of AWOL.  His only punishment was forfeiture.  In May 1952 he was reassigned to Germany and in March 1953 he was convicted by a special court-martial for leaving his sentinel post without being relieved.  His punishment included forfeiture and confinement at hard labor for 4 months.

He successfully completed a rehabilitative training program and in August 1953 was transferred to a new battalion to complete his term of service.  The applicant was assigned as his Battalion Executive Officer’s jeep driver and appeared to being doing well until he misappropriated the jeep.  He was then transferred to a communications platoon after conviction by a special court-martial in October 1953.  In November 1953 he was punished under Article 15 of the UCMJ and involved in several minor acts of indiscipline.  A 17 December 1953 mental status evaluation concluded the applicant was mentally responsible, able to distinguish right from wrong, and able to adhere to the right.  In February 1954 the applicant appeared before a board of officers which recommended the applicant be discharged for unfitness with an undesirable characterization of service.  The board’s recommendation was approved and on 26 February 1954 the applicant was discharged under the provisions of Army Regulation 615-368.  

Army Regulation 615-368, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included, in addition to misconduct and repeated petty offenses, habits and traits of character manifested by antisocial or amoral trends, chronic alcoholism, and drug addiction.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was unsuccessful, impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.
In July 1982 the Army Discharge Review Board unanimously denied the applicant’s petition to upgrade his discharge.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered in July 1982, the date when action on the applicant’s petition to the Army Discharge Review Board was completed.  The time for the applicant to file a request for correction of any error or injustice expired in July 1985.

The application is dated 17 February 1999 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

____mw__  ____aao_  ____clg_  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999023660	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000216	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(deny)	
REVIEW AUTHORITY		
ISSUES         1.189	142.00	
2.		
3.		
4.		
5.		
6.